Identity Cards Bill - Standing Committee D

[Mr. Roger Gale in the Chair]

Identity Cards Bill

Amendment proposed [this day]: No. 80, in clause 24, page 21, line 28, leave out from ‘Commissioner’ end of line 43 and insert
‘include general policy matters, but do not include—
‘(a)the exercise of powers which under this Act are exercisable by statutory instrument or by statutory rule for the purposes of the Statutory Rules (Northern Ireland) Order 1979 (S.I.1979/1573 (N.I.12)) unless any particular case affected by these powers or rules raises a concern of substantial public interest;
(b)the imposition of civil penalties, objections to such penalties or appeals against them, unless a particular penalty, objection or appeal raises a concern of substantial public interest;
(c)the operation of so much of this Act or of any subordinate legislation as imposes or relates to criminal offences in any particular case, unless a particular case raises a concern of substantial public interest;
(d)the provision of information to the Director-General of the Security Service, the Chief of the Secret Intelligence Service or the Director of the Government Communications Headquarters in any particular case, unless the provision of information in any particular case raises a concern of substantial public interest; or
(e)the provision to another member of the intelligence services, in accordance with regulations under section 23(5), of information that may be provided to that Director-General, Chief or Director in any particular case, unless the provision of information in any particular case raises a concern of substantial public interest.’.—[Mr. Garnier.]

Roger Gale: I remind the Committee that with this we are discussing the following amendments: No. 184, in clause 24, page 21, line 28, leave out ‘do not’ and insert ‘shall also’.
No. 81, in clause 24, page 21, line 29, leave out paragraphs (a) to (c).
No. 220, in clause 24, page 21, line 36, after second ‘service’, insert
‘the Chief Executive of the Serious and Organised Crime Agency’.
No. 82, in clause 24, page 21, line 43, at end insert—
‘(3A)‘The Commissioner may, where appropriate—
(a)before undertaking a review which include the policy towards the provision of information to the Director-General of the Security Service, the Chief of the Secret Intelligence Service or the Director of the Government Communications Headquarters, liaise with the Intelligence Services Commissioner with a view to referring responsibility for that review to that Commissioner, or
(b)liaise with the Information Commissioner in relation to any processing of personal data.’.

Tony McNulty: Welcome to our deliberations, Mr. Gale. Before the break, I was drawing my remarks on amendment No. 80 to a close.  The only substantive point to make is about oversight in relation to an excluded matter when a particular case raises a concern of substantial public interest. I said that the notion that clause 24(3)(a) to (g) in any way deliberately limits the commissioner’s role is not correct. These jurisdictions overlap with those of other commissioners and bodies, including Parliament. However, I want to discuss the fair point about a concern that is of substantial public interest.
To a large extent, the amendment is seeking to do something that the clause does already. Let us take proposed paragraph (b) of the amendment. While it is not for the commissioner to review the actual exercise of delegated powers—that is Parliament’s role, not the national identity scheme commissioner’s—it is clear from subsection (2)(a) that it is the commissioner’s role to review the Secretary of State’s functions
“under this Act or the subordinate legislation made under it”.
In so far as statutory instruments, regulations and statutory rules in a Northern Ireland context need reviewing within the context of the Act, that is already covered under subsection (2)(a). It is right to exclude the wider scrutiny role of subordinate legislation in general terms, which is the purview of this place, from the commissioner’s deliberations.
To use the language of the proposed paragraph (a), I refer to the position in which
“any particular case affected by these powers or rules raises a concern of substantial public interest”
under the Bill. That will obviously fall within the jurisdiction of the commissioner.
By referring to appeals against civil penalties, proposed paragraph (b) of amendment No. 80 would do precisely what clause 24(3)(b) does. Appeals are for the civil courts and it would be inappropriate for the commissioner to have an overlapping jurisdiction. However, it is right that the commissioner has oversight of the rest of the civil penalties machinery, because that will be run by the Secretary of State and, without the commissioner, would not be subject to an oversight. Therefore, proposed paragraph (b) of the amendment, which would remove that part of the commissioner’s jurisdiction, is inappropriate.
Proposed paragraph (c) of the amendment would enable the commissioner to examine the prosecution of a person for a criminal offence under the Bill if that raised a matter of substantial public interest. I do not believe that that is right. Prosecutions are a matter for the police, the Crown Prosecution Service and the courts. In exceptional circumstances after the event, a prosecution will be the subject of an inquiry. It would be unusual to empower a commissioner to review prosecutions that he considered would raise a matter of substantial public interest. Although I understand the grain of the amendment, it is not necessary for the reasons that I have outlined.
Proposed paragraphs (d) and (e) would give the commissioner jurisdiction to review the provision of information to the security services, again subject to the substantial public interest test. The reason for leaving national security matters to existing statutory commissioners, who were created specifically to deal with national security matters, is obvious. I am  referring to the overlapping of jurisdictions with existing commissioners. We do not want such sensitive issues to be dealt with in wide-ranging forums. It is better that they be dealt with by those who deal with them daily. Although I understand in which direction the hon. and learned Member for Harborough (Mr. Garnier) wants to draw us, I do not believe that amendment No. 80 is appropriate. It has raised some interesting points, but I ask him to withdraw it.

Edward Garnier: I shall seek leave to withdraw the amendment because it can probably be more fully discussed on another occasion.
The hon. Member for Broxtowe (Dr. Palmer) made one of his usual interesting and wholly Delphic interventions. He fails to understand—it is probably not his fault because he has not been an Opposition Member of Parliament, having come straight to the Government Benches in 1997, or 2001—

Kali Mountford: 1997.

Edward Garnier: I stand corrected. The hon. Gentleman fails to understand the restrictions under which the Opposition must work on the Floor of the House and in Committee. They must do their best to create opportunities for debate, to hold the Government to account and to tease out their policy, particularly with a Christmas tree Bill such as this, which gives the Secretary of State huge powers to do things in the name of the state. The Government have not condescended to give us the details at this necessary stage.
The hon. Gentleman will forgive me if I tease him slightly. This is not a court of law or a place where the burden of proof is deployed. It is not even a place where any standard of proof must be deployed. It is not an intellectual debating society, but the rough and tumble of Parliament. It is not a perfect way of dealing with the matter and I accept his implied criticisms that some of our amendments would do things that in his eyes are illogical or contrary to the public interest.
The purpose of all our amendments is to get the Government to explain themselves or, if they will not, to meet them head on and to test the will of the Committee by seeking a vote. The hon. Gentleman knows as well as I do that we can never win a vote if the Government have their people here. Although we may win arguments, I cannot engage in a sensible intellectual argument with him about the merit of the policy because, at the end of the day, the Government will simply say, “Very interesting. Let us have a Division and defeat the Opposition.” That is Parliament and I am not complaining about it. I have got used to it since 1997, but if he has a spell in opposition—I trust that he will have that opportunity in due course—he will realise that there are more perfect ways of holding a Government to account. However, that is all in parenthesis to what the Minister said.
There will be other opportunities to debate as parliamentarians the issues covered by our amendments. In the meantime, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Patrick Mercer: I beg to move amendment No. 83, in clause 24, page 22, line 8, at end insert
‘to a maximum of 10 members of staff’.
I welcome you back, Mr. Gale. It is good to have you with us.
The amendment is simple and seeks to discover what the national identity scheme commissioner will look like when he exists, red in tooth and claw. How will the Government appoint him and what will his establishment look like? Subsection (6) states:
“The Secretary of State—
(a)after consultation with the Commissioner, and”—
the grammar is strange—
“(b)subject to the approval of the Treasury as to numbers,
must provide the Commissioner with such staff as the Secretary of State considers necessary for the carrying out of the Commissioner’s functions.”
The amendment would add,
“to a maximum of 10”.
We want, purely and simply, to find out exactly what the commissioner’s establishment will be, how much it will cost and how much it will add to the overall cost of this already exorbitantly expensive scheme.

Tony McNulty: As the hon. Gentleman implies, amendment No. 83 would limit the commissioner’s staff to 10 people. Although the Government have not determined how many people would be required to work for the commissioner, we have given the matter some initial consideration and simply do not believe that it is possible for the commissioner to carry out his functions with so few people, not least because his functions have been extended following the Home Affairs Committee’s recommendations to include not just oversight and the provision of information from the register but the general operation of the scheme. The Government consider that it is for the commissioner as well as the Treasury to be consulted when determining staff numbers. That will ensure that the commissioner has sufficient resources to undertake his statutory functions, but no more than necessary.
It is entirely standard practice to provide such a safeguard; for example, it was used in the Regulation of Investigatory Powers Act 2000 for the establishment of the Intelligence Services Commissioner. We are not about to be profligate with public resources in respect of the staff that the national identity scheme commissioner needs. Hon. Members will understand that his role is key to the overall scrutiny of the system, certainly as it is introduced and beds down. We do not want unduly to limit his staff numbers in quite the way that the hon. Gentleman seeks to do.

Tim Farron: Will the Minister reflect on one small point: the difference in tone between Liberal Democrat  opposition to the Bill and that of the Conservatives? If it were to come to a vote, my party would not support the amendment. It appears that the motivation of the official Opposition is simply to limit expenditure, whereas our concern is to ensure that the commissioner has the greatest ability possible to scrutinise the system. The limit suggested by the Conservatives would perhaps save a few pence here and there, but it would limit his effectiveness.

Tony McNulty: I am grateful for the import and flow of that intervention, if nothing else. The hon. Gentleman will forgive me if I do not take much notice of the Liberal Democrat tone—it varies from day to day, street to street, ward to ward and constituency to constituency. However, in good order and with good spirit, I accept the flow of his comments—for today. No doubt they will change tomorrow or next week.
The Government are clear that a staff of 10 is not sufficient for the commissioner to carry out his task. With that sentiment, I ask the hon. Member for Newark (Patrick Mercer) to withdraw the amendment.

Patrick Mercer: I have listened to what the Minister has said. As usual, his argument has been lucid.
I accept the fact that the commissioner is not yet established. Although I believe that the addition that we would make would help and assist, I take it that the Minister’s reassurance about subsection (6)(b) means that, to all intents and purposes, the amendment will be observed in the principle if not in the letter. On that note, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 24 ordered to stand part of the Bill.

Clause 25 - Reports by Commissioner

Edward Garnier: I beg to move amendment No. 84, in clause 25, page 22, line 16, leave out from ‘must’ to ‘State’ and insert
‘lay before each House of Parliament a general report’.

Roger Gale: With this it will be convenient to discuss the following amendments:
No. 85, in clause 25, page 22, line 18, leave out subsections (2) to (5) and insert—
‘(2)The Commissioner may also, at any time, lay before each House of Parliament such other reports on any matter relating to the carrying out of those functions as the Commissioner thinks fit.’.
No. 86, in clause 25, page 22, line 18, leave out subsection (2).
No. 87, in clause 25, page 22, line 21, leave out subsection (3).
No. 88, in clause 25, page 22, line 25, leave out from ‘would’ to end of line 27 and insert
‘cause substantial harm to the public interest’.
No. 89, in clause 25, page 22, line 26, leave out from ‘security’ to end of line 27.
No. 90, in clause 25, page 22, line 27, after ‘of’, insert ‘serious’.
No. 221, in clause 25, page 22, line 33, at end add—
‘(6)Any statement laid under subsection (5) must provide an explanation of why a matter has been excluded.’.

Edward Garnier: Amendment No. 84 stands in my name, the names of my hon. Friends, and the name of the hon. Member for Orkney and Shetland (Mr. Carmichael). The amendments can be divided into two sections. The first deals with the balance of power between the Executive—the Home Secretary—and Parliament, and the second deals with the power to edit the report. As Opposition Members, we are keen that the balance of power should be redressed—as I said earlier, it is out of kilter—and that Parliament should have a greater say in the commissioner’s reporting function. If the Secretary of State is to control the reports that are laid before Parliament, and if the commissioner has first to report to him rather than directly to Parliament, we should be told if not what the commissioner has had to edit, at least when he has had to edit his report or reports at the request of the Secretary of State. It is not clear in the Bill whether items or sections of the commissioner’s report that are removed from the report placed by the Secretary of State before Parliament will have been redacted or simply removed without Members of Parliament knowing what has been taken out.
Time does not permit me to read out each amendment in the group under discussion, but there is a serious argument and an issue to be joined between Parliament and the Executive. Here we are in Parliament trying to control the Executive over where the power to dispose should rest. Clause 25(1) states that
“the Commissioner must make a report to the Secretary of State about the carrying out of the Commissioner’s functions.”
Since, as the Government would have it, the commissioner is appointed by the Secretary of State subject to all the public appointments issues that the Minister mentioned, no doubt the Government think it right that the commissioner must report to the Secretary of State.
We, on the other hand, say that, despite the fact that the commissioner will be appointed by the Secretary of State, the commissioner is carrying out a public function for which he should account to Parliament, not because we distrust the commissioner, but because this is a hugely important issue of public policy. It is a whole new departure in the relationship between the state and the individual, and we, as protectors of the rights of the individual, the constituent and any individual who may not be a citizen but who happens to be within our shores, should have the right to inspect and to demand of the commissioner his report.
Amendments Nos. 85, 86 and 87 essentially make the same point. They would command the commissioner to account to us rather than to the Secretary of State. I can understand that as a matter of common sense the commissioner and the Secretary of State may discover matters about crime and terrorism  about which it would not be sensible for the public to know. None the less, even if the commissioner cannot tell us everything, he should at the very least present via the Secretary of State a report that blacks out what cannot be seen, so that we know precisely what exercise the report has been through before it was presented to Parliament.
That is the essential import of our two sets of amendments to that one line. I shall not labour the point further, save to say that in relation to amendment No. 221, the provision requires an explanation, which I hope that the Government shall not feel inhibited from giving to Members of Parliament.

Tobias Ellwood: The method by which parliamentarians can keep track of the progress of this legislation will be key to the reports that are made by the commissioner. As we have debated over the past few days, the entire project of a register and of producing ID cards is massive from a financial as well as a technical point of view. In many ways, the project is untested, so it is imperative that Members have an opportunity to monitor its progress and comment on it.
Will the Minister clarify how Parliament can take advantage of the reports in order to understand what the commissioner is doing and implement those reports? Bearing in mind the security-related nature of the reports, I am concerned that they may never see the light of day. My worry is that matters can be hidden behind some of the provisions, which means that we will not have an opportunity to discuss the reports, take on board public opinion and mould the project in such a way that it is palatable and appropriate.

Tony McNulty: In the Government’s response to the Select Committee on Home Affairs, we accepted the recommendation that the national identity scheme commissioner should have broader oversight of the whole scheme. That is broadly provided for in clauses 24 and 25. The commissioner’s remit will therefore include examining the uses to which ID cards are put and the dealings with recipients of information held on the register, and it is not limited to the administration and issuing of the cards. We accepted those points, which were raised by the Home Affairs Committee.
While I appreciate the arguments in support of the amendment, the Government consider it necessary for reports to be addressed to the Secretary of State, with the potential for parts of a report to be excluded from the version laid before Parliament. That is the case primarily because of the function of the commissioner in overseeing the provision of information without consent. As I shall discuss later, many of the concerns of the hon. and learned Member for Harborough are dealt with in the clause.
There are precedents for this situation in the oversight of police activities, which falls to the Office of the Surveillance Commissioners. The chief surveillance commissioner reports annually to the Prime Minister and has similar discretion to that set out in the clause. Similarly, when Her Majesty’s inspector of constabulary reports to the Secretary of  State, he has the power to exclude from publication any part of the report that would be against the interests of national security or might jeopardise the safety of any person.
The amendments would remove the Secretary of State’s discretion to exclude information held in a report where he considers that a matter contained in the report would be prejudicial to national security or the prevention or detection of crime. Given the sensitivity of some of the information relating to provision of information without consent, there are certain circumstances in which it would be prejudicial to these matters if a report were laid in Parliament that could be publicly read.
For example, the commissioner will have responsibility for oversight of the provision of information without consent to the Serious Organised Crime Agency. It cannot be in the public interest or Parliament’s interest for those matters to be in the public domain. To make public the purposes for which that organisation had been provided with information in every case would allow very sensitive information to be released. It would also be inconsistent with the usual oversight procedures for these bodies and, as such, may limit their use of the register. That would impinge on those bodies and their efficacy—in this case, in fighting organised and serious crime. Again, that cannot be in the national or public interest.
I do not think it is appropriate either to raise the exclusion threshold to “serious” crime, since information may be provided without consent under the previous clauses for all crime. The Government therefore see the power to exempt information as necessary. There are safeguards to the use of the power, however. The Secretary of State must consult the commissioner before any part of a report is excluded from publication. Decisions are not simply made on a whim of the Secretary of State. The practice of the intelligence services commissioner and the interception of communications commissioner is to provide a report to the Prime Minister in two parts; one is to be laid in Parliament, and there will also be a confidential annexe not for publication. If such a practice were adopted by the commissioner, it would effectively allow him to recommend which parts of his report should be made public, although this will be done in consultation with the Secretary of State.
We have listened to the arguments made about the power to exclude information from the reports. Observant Opposition Members will have noticed that this Session’s Bill no longer allows matters to be excluded on the ground that they would be prejudicial to the continued discharge of the functions of any public authority or would be otherwise contrary to the public interest. Those elements were in the previous Bill, but we dropped them from this one. If a matter were excluded from the report, a statement would be laid before Parliament to that effect, just as it is in relation to reports made by the commissioners whom I have mentioned. The relevant provision is subsection (5).
I do not consider it necessary for an explanation to be provided as to why a matter has been excluded. As I mentioned, only two bases are left in the Bill on which matters can be excluded: where something is prejudicial to national security or to the prevention or detection of crime. Providing further explanation may well result in those aims being frustrated, and bodies that are doing serious business in the public and national interest may be hidebound or restricted in their ability to use the register.
I am sure about that view, despite the points that have been made concerning the relationship between the Executive and Parliament in relation to scrutiny, which I accept. I am sure that it is not the intention of the amendment to debilitate in any way the ability of the Serious Organised Crime Agency and others to utilise the register. In that context, I ask the hon. and learned Gentleman as pleasantly as I can to seek leave to withdraw the amendment.

Ben Wallace: I still cannot see why the commissioner cannot respond to Parliament. I take the Minister’s points on board, but I also note that under subsection (3), much of the commissioner’s remit will be dealt with by the other commissioners whom the Minister mentioned, who report directly to the Prime Minister. Given the use of national security or national interest as a barrier, I wonder what is left for the commissioner to expose.
I take the point about the Serious Organised Crime Agency, but in a debate on a previous amendment, the Government was asked why that agency was not included in the matters under review. In this instance, I do not see why the commissioner could not report to Parliament, and I am not convinced by the Minister’s response on that. There are plenty of other areas that are excluded, so I am not persuaded. I hope that my hon. and learned Friend the Member for Harborough will press the point.

Tobias Ellwood: May I press the Minister again to respond to my queries about the checking process that Parliament will have with regard to the commissioner and the report? Will Members of Parliament have the opportunity to review annually what is happening? I am concerned that the clause contains provisions that will prevent Members from carrying out that role.
I understand that we are about eight years away from the launch of the project in its entirety. The Minister gave other examples of existing structures in which commissioners or senior representatives provide reports, but they are already in situ. This is an entirely new project using taxpayers’ money that is yet to be tested. That is all the more reason why Parliament should have an opportunity to comment on the matter. Will the Minister also elaborate on the period between now and the appointment of the commissioner?
We have eight years until the project is launched. If at some point the figures were added up and we saw that we had ended up spending twice as much as the original cost of, say, £5 billion, would the Government concede that we were spending too much money on the  project? Parliament must have an opportunity to comment on the process as things develop between now and the launch of the project. We are in untested territory; it is not a matter of simply picking up something that already exists and putting it into practice. Will the Minister clarify how we will ensure that the project remains accountable?

Edward Garnier: I am sympathetic to the argument put forward by my hon. Friend. It would be helpful if the Government explained—if not now, they should do so at some early stage—whether there will be an annual debate on the commissioner’s report, albeit that it may come via the Secretary of State.
I am also sympathetic to the point made by my hon. Friend the Member for Lancaster and Wyre (Mr. Wallace), but I am afraid that time does not permit us to press it to the extent that we would like. I look forward to hearing the matter discussed in another place, not with greater leisure—that is the wrong word—but with more time available.
I listened to what the Minister had to say about the amendment, and I will not seek to press it to a Division, but he should understand—I think that he probably does—that this area of public policy is unravelling minute by minute. Parliament as a whole needs to be kept abreast, and it also needs to keep control of the Executive. If the Home Secretary wants to look at and edit the commissioner’s report before he condescends to let us see it, it behoves the Government all the more vigorously to be frank, candid and open with the legislature as the legislation develops—or is rolled out, as the Minister would say.
I am not usually fond of co-operating with the Government, but I will do so in this instance. In the spirit of co-operation, I will ask for the amendment to be withdrawn. I hope that the Minister accepts, however, that this issue will not go away simply because of that. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Question proposed, That the clause stand part of the Bill.

Roger Gale: With this it will be convenient to discuss new clause 2—Reports on the Commissioner’s functions—
‘(1)As soon as practicable after the end of each calendar year, the Commissioner must lay before Parliament a report about the carrying out of the Commissioner’s functions.
(2)The Commissioner may also, at any other time, lay before Parliament other reports on any matter relating to any of the functions or powers set out in this Act.’.

Tim Farron: I am sure that the Minister and the Committee will acknowledge that my party does not accept that the national identity register is justified. We will keep making that point. I was sorry to hear that the Minister thinks that we are inconsistent, because I think that it is fair to say that my party is perhaps the only party that has been consistent on this issue since it was first raised. I have no doubt that once upon a time  Government Members were progressive politicians who thought the sort of Orwellian nonsense that we are currently addressing should be fought against rather than backed without question. Our opposition is consistent and principled, rather than opportunistic. None the less, in the context of the Bill, we welcome the creation of a national identity commissioner. We think that that is necessary and that it will improve the legislation.
The new clause would extend the commissioner’s powers in a defined way, rather than in the open-ended way that clearly so irked the Minister earlier. Let me outline its two main purposes. It would allow the commissioner to make an annual report with a wide-ranging remit that covered the carrying out of all their functions. It would also give the commissioner the power to make other reports to Parliament relating to other functions and powers in the legislation.
We want the commissioner to be an independent and robust reviewer of the scheme’s operation, and we are not convinced that there is sufficient capacity for the role to operate in that way. The commissioner does not have the power—we believe that they should do—to review the adequacy of their own role or even officially to express a view. Why not allow the commissioner to have that role?
The Secretary of State must lay a copy of the commissioner’s reports before Parliament, but we are concerned that the Secretary of State can edit and omit things for an unjustifiably wide range of reasons, if in their judgment those items are prejudicial to national security—[Interruption.]

Roger Gale: Order. The Committee is aware of my disdain for private conversations in the Room. There are lovely green Benches outside in the Corridor; anybody who wishes to have a private conversation can go out and sit on them.

Tim Farron: Thank you, Mr. Gale.
I am concerned that the Secretary of State can decide what is and what is not acceptable in the commissioner’s reports. Far too much licence is given; for instance, the report may edited on the basis that something in it could be prejudicial to the discharge of the functions of any public body. Of course, that would include the Home Office and the UK Passport Service. Items in the report that were critical of the services—they would be vital elements and central to the role of the commissioner—could be excluded from it. That is a matter of great concern.
No doubt, the Minister will entertain us with a demonstration of incredulity at the idea that there could be any abuse of the power or that people could play fast and loose with it. However, as we said earlier, the general opposition to the Bill is based on the obvious fact that we cannot bind our successors to behave in a certain way. The Minister knows that. Not to define and extend the powers of the commissioner is naive and politically counter-productive. It simply stokes the suspicions and fears of people such as me and the increasing number of people outside  Parliament who are opposed to the Bill. We are merely trying to be helpful and to do a better public relations job on the Bill than the Government are doing.

Roger Gale: Order. Before we proceed, I remind the Committee that new clause 2 has not been moved. Were it to be moved, that would be done in the appropriate place at the end of our considerations, although it is being taken with this stand part debate on clause 25.

Tony McNulty: If the hon. Member for Westmorland and Lonsdale (Tim Farron) is trying to be helpful, he has failed miserably. I will forgive him, because he has been in the House for only about three months.
The role and function of the commissioner is a very serious matter. To treat it so lightly and tritely, in what was, in essence, a fourth-form debating society speech is simply not good enough. The hon. Gentleman talked about the wide-ranging scope to exclude things in the report. National security and the prevention or detection of crime do not constitute a wide-ranging scope. He talked about the second element of his new clause as though it were some wonderful, radical innovation that even Lloyd George would delight in were he still with us, but that element has already been included in subsection (2), which states:
“The Commissioner may also, at any other time, make such report to the Secretary of State on any matter relating to the carrying out of those functions as the Commissioner thinks fit.”
The hon. Gentleman should be thoroughly ashamed of himself if he is happy three months into his parliamentary term, on the basis of some obtuse, fourth-form, third-party or minor party point of principle, to undermine in any way, shape or form the work of the security forces, the Serious Organised Crime Agency and others who seek to defend our national security and to detect those who would commit crime. The Committee should dispatch with relish new clause 2 for the fourth-form drivel that it is.

Question put and agreed to.
Clause 25 ordered to stand part of the Bill.
Clause 26 ordered to stand part of the Bill.

Clause 27 - Possession of false identity documents etc.

Roger Gale: We now come to amendment No. 91, with which we will discuss the following amendments: No. 92, in clause 27, page 23, line 29, at end insert
‘unless he has that person’s permission and has good reason to have that document in his possession’.
No. 225, in clause 27, page 24, line 5, after ‘false’, insert
‘and that he knows to be false or has reasonable grounds to believe to be false’.
No. 226, in clause 27, page 24, line 6, after ‘obtained’, insert
‘and that he knows or has reasonable grounds to believe to have been improperly obtained’.

Patrick Mercer: I rise to move the amendment, but I do not have my notes to hand.

Edward Garnier: I apologise, Mr. Gale. I have left my hon. Friend in the lurch. I was busy preparing to speak to amendment No. 93; as you know, Mr. Gale, I have behind me the full resources of the vast number of Opposition civil servants. I shall leave it to my hon. Friend to deal with amendment No. 91.

Tony McNulty: I was drawn to speak not by the hon. and learned Gentleman’s attempt to introduce amendment No. 91, but by his point about the vast array of civil servants that he has, or has not, got behind him. I want to make it clear to the entire Committee that the vast army of civil servants that I have behind me had nothing to do with my previous speech.

Edward Garnier: That I believe.

Roger Gale: Order. On reflection, I think that I had better say nothing about that, but I am not entirely clear which hon. Member has moved amendment No. 91.

Edward Garnier: As I am on my feet, I shall deal briefly with amendment No. 91, which I shall now move.
I beg to move amendment No. 91, in clause 27, page 23, line 29, at end insert
‘unless he has reasonable cause to be in possession of that document’.
The amendment stands in my name and in the names of my hon. Friends. My hon. Friend the Member for Newark will try to catch your eye shortly, Mr. Gale.

Nick Palmer: I shall assist the hon. Member for Newark and his researchers by intervening briefly.
I note what the hon. and learned Member for Harborough said earlier, but I have served on about a dozen Bill Committees, and I know that it is customary for Opposition proposals to make sense even if they are only probing amendments. I do not know whether Opposition Members have had the chance to read subsection (2). The amendment mentions
“reasonable cause to be in possession of that document”.
Apparently, that is proposed despite subsection (2), which essentially relates to a person wishing to use the document to pretend to be somebody else. Do they really mean that?

Patrick Mercer: I am most grateful for the indulgence of several of the Members present.

Roger Gale: Order. I apologise, but I was carried away with such enthusiasm in trying to work out who was moving the amendment that I forgot to put the Question. I hereby rectify that.

Patrick Mercer: I seem to have put everyone in a bit of a pother with this one. It is entirely my fault and I am grateful for the assistance of all Members, including the hon. Member for Broxtowe, who no doubt seeks to assist me in respect of this group of amendments. He has a point; amendments Nos. 91 and 92 overlap unacceptably. Poor drafting on my  part has made amendment No. 91 redundant. Therefore, if it is in order, Mr. Gale, I shall simply address amendment No. 92.

Roger Gale: Order. The hon. Gentleman may address any of the amendments in the group. The amendment moved is the one that he does not want to talk about—amendment No. 91—about which I have no power to do anything.

Patrick Mercer: Thank you, Mr. Gale. In that case I will quickly make my comments address amendment No. 91; I wish that they would reflect more closely amendment No. 92.
Amendment No.91 seeks to insert these words:
“unless he has reasonable cause to be in possession of that document”.
That is expanded further in amendment No. 92:
“unless he has that person’s permission and has good reason to have that document in his possession”.
I think that, despite my peregrinations, it is clear that we simply want to introduce in clause 27 a further understanding of why a false identity document will not necessarily always be acquired knowingly. There could be good reasons why someone has false documentation without their necessarily realising. They could have borrowed it or—this is more likely—had it planted upon them.
No doubt the hon. Member for Westmorland and Lonsdale will wish to add his comments about the other amendments, but I would simply be most grateful if the Under-Secretary made it clear why the proposed words should not be included.

Tim Farron: I rise simply in regard to the amendments standing in my name and that of my hon. Friend the Member for Orkney and Shetland. Surely, in relation to clause 27(5)(a), intent is everything. There are many reasons why a person may have an inaccurate and potentially false document on their person without intending to mislead, to enable access or to pass themselves off as somebody else. Clearly it is possible that someone could have an out-of-date document with their maiden name on it, which would indeed be false, because they had not got round to changing it. It is important that we improve this part of the Bill by clarifying that intent is the key element. It is on that basis that I support the amendments.

Ben Wallace: I am not sure whether we will have a stand to debate on the clause. [Hon. Members: “Stand part”.] Indeed. If any part of the Bill is the best part and the one that should remain if everything else was stripped away, it is this. It is an important and useful contribution to fighting terrorism and false identity, and I welcome the clause.
However, I must ask one clarificatory question, which may arise for legal or other reasons. Subsection (7) says that the good people of Scotland and Northern Ireland will get a term of imprisonment
“not exceeding six months or a fine not exceeding the statutory maximum”,
whereas the good people of England and Wales will get a term “not exceeding 12 months”. Why is there a difference in sentencing? I am sure the reason can be pointed out easily.
In a spirit of support, I say that this is a useful part of the Bill and I know that agencies throughout government will support it. It is a good step towards solving our problem.

David Drew: On a point of order, Mr. Gale. I want to be completely clear. Amendment No. 92 seems to replace amendment No. 91, although amendment No. 91 is the lead amendment. I seek your guidance as to how the Opposition get to amendment No. 92, given that amendment No. 91 is not their preferred amendment.

Roger Gale: For once, that is a genuine point of order and I will endeavour to respond. Amendment No. 91 is the lead amendment. It is grouped with amendments Nos. 92, 225 and 226. Once the amendments have been debated, it is open not only to the Opposition, but to any Member of the Committee, to seek to persuade the Chair to call another amendment independently. In other words, if the hon. Gentleman wishes to persuade me that he would like to move amendment No. 92 formally, that is something I will consider at the appropriate time. The amendment under discussion, which has been moved, is amendment No. 91. I hope everyone understands that.

Andy Burnham: Thank you, Mr. Gale. I think I understand that point. We will find out.
First, I want to preface my main remarks by picking up on the comments made by the hon. Member for Lancaster and Wyre and thanking him for his helpful contribution. He has wide-ranging experience in the field and I welcome his welcome of the new offences, which might be enacted in advance of any national identity register or ID card scheme. We will have to consider that more closely once the Bill has been passed.
Amendments Nos. 91 and 92 would, in different ways, qualify the offence of possession of false identity documents with intent to use them. In considering the amendments, I urge Opposition Members to read subsections (1) and (2) of clause 27 together. By doing so, they will understand the balance of the clause.
The amendments would qualify possession of an identity document belonging to another as not falling in the scope of the offence when the individual concerned had the permission of the document’s owner and/or reasonable cause for having the document. As I said, it is apparent from reading subsections (1) and (2) together that the amendments are not necessary.
A person could not be guilty of the offence simply by having the identity document of another in his possession; the prosecution would have to prove that he had the requisite intention of using the document. The two elements taken together give rise to the offence under the clause. No defence is therefore  required for the possession limb of the offence—that is, no defence can be made, as it is simply a fact whether someone has an identity document in their possession or not.
If a defence were added, it could give rise to the curious situation in which a person had a reasonable excuse for being in possession of a document, yet intended to misuse it. Obviously, we would not want that slightly confusing form of words in the Bill.
The amendments tabled by the hon. Member for Westmorland and Lonsdale relate to subsection (5), which creates an offence of mere possession. That offence would attract a lower penalty and is qualified by the words “without reasonable excuse”. Paragraphs (a) and (b) of subsection (5) create offences of possession without reasonable excuse of an identity document that is false or improperly obtained. Amendments Nos. 225 and 226 would qualify those offences by providing that the person must know or have reasonable grounds to believe that the document was false or improperly obtained.
I hope I can convince the Opposition that there is no need for those amendments. If a person did not know that they had a false or improperly obtained document, that fact would in itself amount to a reasonable excuse in the eyes of the law. It was said in the debate that intent is everything, but if an individual did not know that the documents were false or improperly obtained, he could use the “reasonable excuse” provision in the clause as part of his case.
We have had a slightly disorderly discussion on these amendments, but I hope we can bring it to a close. Without rejecting the amendments flatly, I think I can say that what the Conservative and the Liberal Democrat amendments would achieve is built into the clause. With respect to the Conservative proposals, possession must be balanced by intent in subsections (1) and (2); with respect to the measures tabled by the hon. Member for Westmorland and Lonsdale, the very fact of the person’s knowledge, or lack of it, would be relevant to the test of “reasonable excuse”. In both cases, the concerns are taken care of, and I urge hon. Members not to press their amendments.

Roger Gale: On reflection, the Under-Secretary may wish to consider the fact that this Chairman does not permit disorderly debate. With that in mind, if the hon. Member for Westmorland and Lonsdale wishes to respond he may do so, but technically the hon. and learned Member for Harborough should make the winding-up speech because he moved the lead amendment.

Edward Garnier: I am delighted to do so, because it enables me to thank my hon. Friend the Member for Newark for seconding the amendment with rather greater organisation than I could muster at the outset. As the Opposition spokesman, I must take responsibility for any infelicities that occur on the Conservative Benches, even if the Government have plenty to answer for.
Let me say on my hon. Friend’s behalf that I will not press the amendment to a Division. We have had a useful little discussion, but again, this is, I dare say, one  of those issues that will have to be explored further at a later stage. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Roger Gale: Just so that there is no confusion, does anyone wish to move amendment No. 92 formally?

Hon. Members: No.

Edward Garnier: I beg to move amendment No. 93, in clause 27, page 24, line 12, leave out “ten” and insert “twelve”.

Roger Gale: With this it will be convenient to discuss the following amendments: No. 94, in clause 27, page 24, line 16, leave out “two” and insert “four”.
No. 95, in clause 27, page 24, line 18, leave out “twelve” and insert “six”.

Edward Garnier: As the Under-Secretary said, the clause will establish three separate offences, and the amendment has been tabled to probe the Government’s thinking on the penalties for committing one of those. The first two offences, under subsections (1) and (3), require the requisite intention. Of course, the Crown—the prosecution—must prove to the requisite criminal standard the necessary criminal intent in the defendant to found a conviction.
The requisite intention is not present in the third category of offence. Instead, we face an offence committed by someone who has in his possession, or under his control, one of the documents or items set out in subsection 5(a) to (d) without reasonable excuse. Someone without a reasonable excuse could, if they were not careful, go to prison for two years or be subjected to a fine of an unspecified sum. If they were convicted after a summary trial before the magistrates in England and Wales, they could be liable to
“a term not exceeding twelve months or to a fine not exceeding the statutory maximum”.
In Scotland or Northern Ireland, they could be liable to
“a term not exceeding six months or to a fine not exceeding the statutory maximum, or to both”.
The Under-Secretary will correct me if I am wrong, but the reason for the differences between the maximum penalty on summary trial in Northern Ireland and Scotland and in England is that following the Criminal Justice Act 2003—one of many criminal justice Acts that this Government have passed during the past few years—the arrangements for the maximum penalties available to lay magistrates, justices of the peace or what used to be called stipendiary magistrates or stipes, but are now called district judges in magistrates courts, have changed and their summary jurisdiction per offence has increased to 12 months.
I have spent far too long at Judicial Studies Board courses getting headaches trying to work out all the new criminal justice legislation to do with sentencing over the past year or so to want to impose this on my  hon. Friend the Member for Newark, but perhaps he will take it from me that for the moment—it may change—the jurisdiction of England and Wales allows magistrates greater powers of summary punishment than Parliament has so far been prepared to allow the Scottish or Northern Ireland equivalents.
First, with regard to the penalties set out in the Bill, I need to know why the Government have lighted on 10 years, which will make the punishment akin to that for severe sexual offences, offences of violence and similar matters. Nasty, violent robberies and burglaries attract if not the same penalty, then certainly something similar to it. Why have they lighted on two years under subsection (5), on the unlimited fines and so forth? We need to know.
Secondly, we need to know who will have to establish that part of the case involving a reasonable excuse: is that for the defendant to prove on the balance of probabilities or for the Crown to disprove to the criminal standard? There will be occasions when mere possession of an instrument or document does not fit into the wording of the Bill. Plenty of people have a car, a gun or a knife, all of which may be used for a criminal purpose. Such instruments are innocent, but used with the wrong motive they can lead to terrible and criminal consequences.
Before passing into criminal law an item such as that set out in subsection (5), we need to be careful not to catch people who might not be able to establish a reasonable excuse, but who none the less are innocent in the eyes of most people. The Government need to exercise a little care.
Having said that, I look forward to what the Under-Secretary has to say about the penalty the Government think appropriate and my concerns on the burden of dealing with the question of a reasonable excuse.

Andy Burnham: As the hon. and learned Member for Harborough explained, the clause will create three new offences: first, possessing false identity documents with the intention of using them to establish registrable facts about a person and thus committing what is now called identity fraud; secondly, making or possessing any equipment that could be used to make false identity cards with the intention of committing or enabling someone else to commit identity fraud; and thirdly, possessing false identity documents without reasonable excuse.
Those new offences are designed to give the police an extra tool to disrupt terrorist and organised crime networks. If a person is in possession of a false document and it can be shown that they intend to use it, on indictment there is a maximum sentence of 10 years, as the hon. and learned Gentleman said. However, the offence of possession without reasonable excuse can apply even before use has been made of false documents or their intended use can be shown. That offence is triable either way; on indictment, the maximum penalty is two years.
Amendment No. 93 would increase the sentence for possessing a false identity document with the intention of using it from 10 years to 12. Amendment No. 94  would increase the penalty for the possession of a false document without reasonable excuse from two years to four. However, we think the balance in the Bill is about right.
The hon. and learned Gentleman asked how we had come up with our figures; I shall explain that to him with reference to other legislation. Section 5 of the Forgery and Counterfeiting Act 1981 makes it an offence for a person to have in his possession an instrument that he knows or believes to be false with the intention of inducing someone to accept it as genuine. The offence is subject to a maximum 10 years’ imprisonment. It is sensible to bring the maximum penalty for a similar offence in line with such legislation.
The hon. and learned Gentleman will know that the 1981 Act has been the principal Act of Parliament governing the use of forged documents, and the similar sentence in this Bill is consistent with it. Furthermore, having an offence of possessing forged documents and intending to use them is an attempt to bear down on the sophisticated gangs that use vast quantities of forged documents to perpetrate people trafficking, smuggling, and terrorist and organised crime networks. Ten years is a substantial sentence that is proportionate and consistent with other legislation.
Imprisonment for two years for possession of false documents without reasonable excuse should serve as a deterrent against terrorist activities, organised crime operations and those who traffic illegal or sex workers. Given the absence in the offence of any requirement of intention to use, I took the view that a maximum penalty of four years would be too high. I refer the hon. and learned Gentleman to clause 30, which contains an offence of providing false information in an entry on the register to obtain an ID card. The two-year penalty is consistent with that. We think it is balanced and right.
Clause 27 provides that a maximum penalty on summary conviction in England and Wales is 12 months, and in Scotland and Northern Ireland six months. The hon. and learned Gentleman was absolutely right to refer to the Criminal Justice Act 2003, which has given magistrates the power to extend sentencing to a maximum of 12 months.
Amendment No. 95 would replace the reference to 12 months with one to six months. We want to ensure that the Bill complies with the 2003 Act and enables magistrates to use the full range of sentencing options that the Act gives to them. The Act also provides for the concept of “custody plus”. Once that is in force, instead of imposing a six-month sentence, of which three would be served, magistrates will be able to impose a sentence of 12 months, of which a maximum of three will be spent in custody and up to nine under supervision in the community.
The Bill has been drafted so that once the powers of magistrates in England and Wales are increased, they can make full use of them in relation to the three offences that I have mentioned. We think that is right.

Edward Garnier: Will the Under-Secretary help me with two points? First, is the subsection (5) offence, which is possession of one of those documents or instruments  without reasonable excuse, internal to the subsection (1) and subsection (3) offences? In other words, if one were charged with a subsection (1) or subsection (3) offence, but found not guilty because one did not have the requisite intention, would the judge still be able to direct the jury, or the magistrates still be able to direct themselves, to convict on the lesser, subsection (5) offence?
It may be more appropriate to deal with my second question when we consider the next clause, and I do not wish to burden the Committee with my personal reminiscences, but wearing another of my hats, I have sentenced somebody under the Forgery and Counterfeiting Act 1981 to quite a lengthy term of imprisonment for entering this country with a forged passport. Will this Bill and the offences under clause 27 replace those relating to use of a forged passport under the 1981 Act, or will an almost identical offence be added? Will we be duplicating or providing a wholly separate law?

Andy Burnham: I shall attempt to provide the hon. and learned Gentleman with an answer. If I get any element wrong, I shall clarify the matter in writing. Proving possession and intent is obviously quite a high bar to get over, as he said. The 10-year sentence will be common when people are operating for the purposes of a serious crime. The “intent to use” limb of the offence could be difficult to prove; the offence of possession would of course be easier to prove.
I shall have to get back to the hon. and learned Gentleman on whether one offence will rule out another, or whether we might try for one offence and then go for the lesser charge. It will be up to the prosecution to determine which of the two offences might be made to stick. The lesser charge obviously carries with it a much lesser sentence, and the prosecution will have to judge which offence it is right to go for. I shall come back to him on that.
The hon. and learned Gentleman also asked about the two pieces of legislation and why we are not repealing the 1981 Act. My understanding is that the 1981 Act is much more general and deals with the whole range of documents. The Bill deals specifically with identity documents, and there are differences between the two sets of provisions.

Edward Garnier: I asked my second question because, under clause 28(1)(d), a United Kingdom passport is an identity document for the purposes of clause 27. The 1981 Act deals with counterfeit passports, so I want to know whether the Government are duplicating existing law unnecessarily or whether a discrete offence will be created under the Bill that does not replicate an existing offence under the 1981 Act. I am not setting an exam; if the Under-Secretary wants to write to me about the matter, I shall be happy to receive his letter in due course.

Andy Burnham: I have already been summoned to the headmaster’s study once today, so I would hate to fail my test too. I have received some general information about the 1981 Act, which it would be useful to put on the record. The Act contains general references to making and using false instruments. I  think that the instruments are defined widely under the Act and include stamps, discs and tapes. The offences therefore target forgery generally, not specifically the forgery of identity documents.
The offences do not apply to improperly obtained documents or documents that belong to someone else. In that sense, the offences that the Bill will put in place go further than those outlined under the 1981 Act. As we have discussed, they are intended to close the whole sphere in which people can perpetrate identity fraud.
We are increasingly aware that people have made fraudulent applications to obtain a passport, which could be a genuine document despite being acquired using false information. The answer to the hon. and learned Gentleman’s question is that the provision will broaden the range of offences that can be committed in respect of acquiring false documents or genuine documents that might have been acquired using false information. The Bill allows for that extension.
I hope I have covered most of the points made by the hon. and learned Gentleman, although he also asked about the burden of proof and the reasonable excuse defence under the clause. Reasonable excuse will have to be put forward by the defendant in a case; it will then be for the prosecution to disprove. Therefore, an evidential, not legal, burden will fall on the defendant. As I said to the hon. Member for Westmorland and Lonsdale, individuals might prove lack of knowledge relatively easily if the document has been acquired without their knowledge.

Edward Garnier: I am sorry to interrupt the Under-Secretary, but he might be unwittingly misleading us. We must be careful about requiring a defendant to prove something. If such cases are to be similar to self-defence, that is a matter that the defendant will raise as an issue. He will present it to the court, but he cannot do that off the back of his head. He must have a basis on which to raise such a defence.
The individual does not have to do anything more than raise the issue: he will put up the target and invite the Crown to knock it down. If the process is the same as that of self-defence, I understand what the Under-Secretary is talking about, but, given that he talked about proving matters, we need a little more clarity.

Andy Burnham: I am sure the hon. and learned Gentleman will forgive me if I did not make matters clear. He is absolutely right that the defendant is not required to prove the grounds for his reasonable excuse. It is for the prosecution to knock down the case. I was simply extending the argument to say that, obviously, the individual will be safeguarded if the reasonable excuse is genuine, because it will be hard to knock down a genuine claim that there was no knowledge of the documents having been acquired. He is absolutely right about how this part of the Bill is intended to operate.
I will say a word about Scotland and Northern Ireland and the point that was raised by the hon. Member for Lancaster and Wyre in the last discussion.  The apparent disparity in magistrates’ powers simply points to the fact that there are different and separate criminal justice systems in the UK. Obviously, the Bill must reflect that.
We have had a useful discussion. The penalties in the Bill are consistent with those in existing legislation. The two-year penalty is also consistent with the penalty elsewhere in the Bill for supplying false information to the register.
I can provide some further information to the hon. and learned Gentleman, who correctly picked up on the parts of the 1981 Act that deal with passports, and the duplication in legislation. I said that the Bill does not repeal parts of that Act, but in fact it does. I refer him to schedule 2, which repeals parts of the 1981 Act in respect of passports. The section 5 offence will take precedence over that Act.
With those assurances, I hope that the hon. and learned Gentleman will see fit to withdraw the amendment.

Edward Garnier: Well, I will. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 27 ordered to stand part of the Bill.

Clause 28 - Identity documents for the purposes of s. 27

Edward Garnier: I beg to move amendment No. 96, in clause 28, page 24, line 39, leave out ‘or purports to be’.
Before introducing the amendments to clause 28, I would like just a brief discussion about the class of identity documents. Therefore, at the risk of cutting across you, Mr. Gale, I shall informally refer to amendments Nos. 97 and 98 while discussing amendment No. 96, simply because it is easier to debate them in that way, albeit that they are listed separately.

Roger Gale: Order. Before we proceed, it has been correctly pointed out to me that the groupings are provisional. If it helps the hon. and learned Gentleman, and if he would rather discuss amendments Nos. 97 and 98 with No. 96, he may do so on the understanding that we do not then take them separately. It is entirely up to him.

Edward Garnier: I am grateful to you, Mr. Gale. I had planned to discuss them all and then say, “Not moved” when you stood to ask me to introduce amendments Nos. 97 and 98, but I am happy to go with any procedure that suits the Committee.

Roger Gale: In that case, for the sake of clarity, I will say to the Committee that we are debating the lead amendment, No. 96, with which it will be convenient to discuss the following amendments:
No. 97, in clause 28, page 25, line 6, leave out from ‘licence’ to end of line 8.
No. 98, in clause 28, page 25, line 8, at end insert
‘or
(i)an official birth certificate.’.

Edward Garnier: Thank you, Mr. Gale. I do not think there is any particular magic about the order in which we discuss these amendments. Broadly, they are all designed to deal with the same point, which is to classify the identity documents that are caught by offences under clause 27. Those documents include an identity card and “a designated document”; we have discussed that, and I have expressed my concerns about the vague nature of what a designated document is or may be. There is also “an immigration document” and “a United Kingdom passport”, which we discussed briefly in relation to the previous amendment. There is also a passport issued by another country or “an international organisation”—such as a United Nations passport, presumably, or a World Trade Organisation passport. There is also
“a document that can be used ... instead of a passport”,
such as a travel document issued to an asylum applicant. Interestingly, another document is a UK driving licence, which I presume can be used for identity purposes and to enable one to travel within the common travel area of the UK and the Republic of Ireland, although it is not strictly necessary in order to do that. There is also a driving licence from a country outside the UK.
We are puzzled as to why a birth certificate is not included in that list of identity documents. If the Government are so keen that we should give to the identity register all the information contained in schedule 1, much of which might or might not be found in existing documents, why is a birth certificate not included? There seems to be a degree of inconsistency there.
My argument on this matter needs neither repetition nor elaboration. I have made the points that I intended to make, and I look forward to hearing what the Minister has to say.

Ben Wallace: I wish to push the point made by my hon. and learned Friend the Member for Harborough. Under subsection (4), the Secretary of State will be able to designate what documents will be included, but there was an opportunity to be more specific about those documents and it has been missed.
I agree with my hon. and learned Friend that a birth certificate might be included—or even a marriage certificate. However, I would ask the Government to do even more by considering including documents such as bank statements and utility bills, although I accept that it might be difficult to refer explicitly to them in the Bill. It might be said that people move house a lot, so they might often carry other people’s utility bills. However, I am confident that clause 27(5)(c) would cover that issue.
When people apply for false identities, the official they are applying to might not know what an identity card—or a proper bank statement, or a Northern Ireland driving licence—looks like. How many officials in Lancaster, for example, have seen a Northern Ireland driving licence? That situation often arises even in respect of money: many people do not know what an Isle of Man pound looks like because they have never come across one. How many people in this Room have seen an international driving licence?  It is important that we recognise that being more specific provides a good opportunity to close down some of the options that people have to steal others’ identities. Because officials are often not aware of what a valid identity card—or bank statement or birth certificate—looks like, they chase their tails.
In order for people to open a bank account, they are told, “We need to see your birth certificate.” Once they have got a birth certificate and done that—it is not hard to get hold of someone else’s birth certificate—they can go to a utility company whose staff might say, “If you show us your bank statements, we will give you a utility bill.” A person could quickly build up a whole group of contributing identity papers that would allow them to go to the next stage. Will the Minister consider putting in the Bill the actual words “birth certificate”, “marriage certificate” and perhaps even “bank statement”, so that we can close that loophole for the future?
We feel that there is a gap in the system in relation to birth certificates, for instance. I am fully aware that the Government are effectively committed to stopping the issuing of birth certificates, which will become electronic. I notice that, in the next 10 years, there is to be a move to digitise the database, and the old type of birth certificate will, no doubt, disappear.
People often start low when forging identities: they start by forging anything from a video shop card to an NHS card, which has no photograph on it and is easy to forge, because it is just a 10-digit number and is pretty hard to check. That forgery builds up, layer by layer.
I hope that the Minister will consider being more specific at this point, rather than later. I wonder whether there is a slight contradiction in subsection (4), which states:
“The Secretary of State may by order modify the list of documents in subsection (1).”
Given that there is a long time before the Bill comes into force, the Secretary of State has the opportunity to start the list now and modify it later, rather than starting with a small list and adding to it in 10 years. That way, the message to our financial institutions, the customer, the citizen and everyone else will be clear. It will show people the importance of these documents, and will show that people can get into the system right now; and that, of course, is one of the ways in which many people have forged documentation.
The good thing about the creation of this new offence is that, previously, many agencies and police forces had trouble holding an individual whom they wanted to charge with a terrorist or other offence if all that they had at their disposal was a forgery of a passport. This offence will, I hope, provide them with more reason to hold someone for longer, or to charge them so that they can establish the person’s identity in future. I had a case in which we identified someone, and the question of their identity was the only thing for which we could keep them past the seven-day period. Unfortunately, as they were charged on a minor offence, such as a credit-card forgery, they were bailed. Some 14 or 15 days later, we heard from the German authorities that the person was actually someone  different. The offences set out in clause 27, if properly backed up with identity document definitions, will go a considerable way to helping identity theft to become a thing of the past.

Tony McNulty: I thank you, Mr. Gale, and the hon. and learned Member for Harborough for putting the three amendments together; it makes far more sense to treat them in that fashion.
With these amendments and the clause, we need to start from the premise that the offences in the clause were designed for documents that are useful for proving identity, and as such are extremely valuable as a day-to-day means of proving identity, such as the driving licence or passport. By any token, a bank statement is not proof of identity, although it may be proof of address, temporary or otherwise. The same is true for many of the other suggestions. Our partners may disagree, but a marriage certificate is not an identity document in any way, shape or form.
I shall flit around the amendments a little. With regard to amendment No. 98, it says very clearly on top of a birth certificate that it is not an identity card, nor does it purport to be. Birth certificates are often offered as support for one of the principal documents proving identity, but we cloud the issue if we start to include such elements in the list relating to the offences under clause 27—and we are talking about those specific offences, not about the generic point of what may add to our ability to identify someone. That is why the list is deliberately discrete. However, as the hon. and learned Gentleman suggests, there is a caveat: additions to the list can be made by the affirmative procedure, I think in both Houses. However, clause 28 lists the principal elements, in terms of identity documents.
If we accepted amendment No. 96 and left out the phrase “or purports to be”, which is a standard phrase in forgery and counterfeiting legislation, individuals could produce forged documents so similar to an existing document as to be thought genuine without that being an offence. In contrast, individuals who used false details to obtain a genuine document would be liable to have committed an offence. In the context of the offences in clause 27, I do not see the necessity for such a distinction. It simply does not make sense.
The proposals to exclude driving licences other than UK driving licences also make little sense. Foreign nationals may drive in this country legally while holding driving licences issued in their country of origin. As people know, EU nationals are not compelled to change their licence to a British one, although nationals from other countries must do so after one year. It must make sense that, if we accept the premise that a UK driving licence is a bona fide identity document for the purposes of the offences in clause 27, other driving licences with which people are legally allowed to drive in this country are equally valid identity documents. I do not understand why they should be excluded.
In summary, the list needs to be considered specifically in the context of the offences under clause 27. In that context, the definition of an identity document is rightly narrow. By the by, some wider documents that go beyond identity are still covered by the Forgery and Counterfeiting Act 1981.
To return to the point made by the hon. Member for Lancaster and Wyre, having someone else’s bank statement with intent to defraud will be an offence under the Fraud Bill, which is being considered in another place. His points do not apply specifically in the context of the definition of identity documents, but they are well made. They are being dealt with elsewhere.

Ben Wallace: I know that the details of what supporting documents will be used to make up an application for an ID card will be confirmed by secondary legislation. I ask the Minister to ensure that, when that legislation is decided by the Home Office, it makes sure that those supporting documents are protected by clause 28. When he reviews the list of supporting documents, he should remember to take it into account that the documents that could be required for an ID application should be matching, so that there is no gap between the two. That will mean that if someone is stopped on the way to apply for an ID card and they have all the supporting forgeries, they will be guilty under the offence stipulated in clause 28.

Tony McNulty: That is an entirely fair point that I will consider. Anticipating your wrath, Mr. Gale, I will not reopen the debate on designated documents, which we dispatched in respect of clause 4. None the less, in the first instance, it may make sense to ensure that many of the elements duly defined as identity documents in clause 28 bear a close relationship to those that may be designated and utilised for the implementation of the scheme. You know, Mr. Gale, that when we discussed designated documents there was much discussion about driving licences and others documents, in addition to the passport.
Whether the list will be an absolute mirror, I do not know. There may be elements that we designate that are not in the list of identity documents, although I cannot think of any. The Secretary of State would have to invoke subsections (4) and (5) to add such items to the list to ensure balance. The only item that came up during our earlier deliberations was the Criminal Records Bureau letter or card check. The hon. Member for Lancaster and Wyre made a fair point about correlation between the identity document in respect of clause 29 and a designated document elsewhere in the scheme. I will take that on board.
In that context, this group of amendments is interesting but not terribly helpful, so I ask the hon. and learned Member for Harborough to seek leave to withdraw his amendment.

Edward Garnier: I find the amendments both interesting and helpful, and I am sorry that the Minister does not agree. I note the word “modify” coming into view again in clause 28(4). I know what clause 43 says about modification and its cognate derivation, which is an interesting introduction to statutory language. Unless  I am much mistaken, this may be the first Bill to contain the word “modify” or “modification” instead of the old word “amendment”. However, that is perhaps for another day.
If I understood my hon. Friend the Member for Lancaster and Wyre correctly, the sort of incident that he was talking about when he intervened on the Minister might be covered by the criminal law of intent. However, that would depend on how close to the making of a bogus application the individual is caught with the misleading documents. Again, it is not for me to explain the law of England and Wales; it is for the Government to explain their policy and how they hope to deal with this sort of anticipated problem. None the less, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.
Clause 28 ordered to stand part of the Bill.

Clause 29 - Unauthorised disclosure of information

Patrick Mercer: I beg to move amendment No. 99, in clause 29, page 25, line 34, after first ‘he’, insert ‘knowingly or recklessly’.

Roger Gale: With this it will be convenient to discuss amendment No. 100, in clause 29, page 25, line 36, after ‘he’, insert ‘knowingly or recklessly’.

Patrick Mercer: This clause is important. It deals with unauthorised disclosure of information, and I for one am happy to see such a clause in the Bill, because I have no doubt that it will provide some reassurance to the agencies that will have to deal with confidential information. However, the conundrum in the clause is whether we are talking only about someone who is guilty of giving information unlawfully or whether there is a place for someone who believes that he is working for an organisation that has become corrupt or has individuals within it who are corrupt and needs to blow the whistle. To that end, we have tabled a number of similar amendments in respect of the clause.
Subsection (1) states:
“A person is guilty of an offence if, without lawful authority—
(a)he provides any person with information that he is required to keep confidential; or
(b)he otherwise makes a disclosure of any such information.”
The amendments would simply insert in paragraph (a) the phrase “knowingly or recklessly” in respect of providing any person with information and in paragraph (b) the same phrase in respect of the person’s otherwise making a disclosure of any such information.
The amendments would move the burden to defend the person who acts in such a way without being in full possession of the facts. We all talk regularly to journalists and we all know how easy it is to give information that we do not necessarily mean to give away and might subsequently be damaging. Are we saying that, in such circumstances, an individual working on the register or the card will be guilty if he  gives away information without lawful authority? We want to introduce a defence in the proviso “knowingly or recklessly” in both cases. If we do that, the amendments, along with the defence in subsection (4), which I suspect we will discuss later, would make it quite clear that only persons who act “knowingly or recklessly” would be liable to be prosecuted under the provision. I hope that the Under-Secretary will see the common sense behind that proposal.

Tim Farron: I am grateful to the hon. Member for Newark for presenting the amendments as he has. They highlight the possibilities for accidental or deliberate leaking of information from the register. I can see where he is coming from in terms of the amendments. Why should an act of innocent incompetence on the part of a lowly paid official land them in a position of having committed an offence? Subsection (4) provides mitigation on the basis that a person
“believed, on reasonable grounds, that he had lawful authority to provide the information”.
It does not provide mitigation for someone who has made an innocent error.
Dare I say that the blame lies with the Government in the first place for having created the unnecessary bank of information from which a leak could occur? This situation leads me to reaffirm my view that the best way of dealing with the potential for unauthorised disclosure is to ensure that the source of information is not created in the first place.

Roberta Blackman-Woods: My constituents will be really concerned about this issue and will want to know that we are doing everything possible to prevent leaks of information. The provisions must be drawn as tightly as possible.

Tim Farron: I take the hon. Lady’s point. Some of her constituents are perhaps lowly paid civil servants who could end up coming a cropper over this matter.

Edward Garnier: I do not want to say more than is strictly necessary, because my hon. Friend the Member for Newark has said most of what needs to be said. I just wanted to be sure about something. While we are discussing a criminal offence of unlawful disclosure—we would like it to apply only if the discloser is reckless or deliberate—what the system is concerned about is the disclosure. Confidential information might be true, but its disclosure can have terrible consequences for the individual concerned. I am thinking about health records, matters that are private to the bedroom and all sorts of confidential information that we give to our priest, doctor or teachers at school. Such information may well be true, but it is not the sort of information that we would want broadcast.
The common law of confidence, which is growing and has been doing so since the Prince Albert pictures case in the mid-19th century, is concerned to allow a claimant to seek an injunction to prevent a disclosure if he gets wind of it. First, I need to be assured not only that we will deal with the position after the event, as we do under clause 29, but that, if the disclosure is  unintentional but has exactly the same devastating consequences for the subject of the breach, he or she will have some remedy under civil law against the discloser. Secondly, I need an assurance that the Department would be susceptible to an application for an injunction if I, as the citizen whose confidential information was about to be disclosed, got to hear of it. That is a failsafe, but it is necessary to have such a discussion in the context of the amendment.

Andy Burnham: Committee members have properly outlined their concerns during debates on previous clauses. I refer particularly to concerns that were raised in our morning sitting today by the hon. Member for Lancaster and Wyre about information being misused and swirling round. If the system is to have people’s full confidence—if they are to be confident that their details will not be misused—the clause and the offences in it are important.
We would all want people working in any of the fields itemised in subsection (2)—
“the establishment or maintenance of the Register ... the issue, modification, cancellation or surrender of ID cards; or ... the carrying out of the Commissioner’s functions”—
to be sure that they were working in an environment where they had access to privileged information. They should know that that information is to be treated with care and sensitivity and should not be disclosed casually to another person. When they are involved in making a disclosure, they should have this clause in mind. That would be a helpful pressure to ensure that information was not casually or accidentally disclosed to places where it should not go.

Ben Wallace: Will the Under-Secretary clarify why he settled on the term of two years, bearing in mind the different scenarios on which information could have an impact?

Andy Burnham: Again, that is consistent with the 1981 Act. I will deal with that matter in detail, but first I shall explain a bit more about the structure of the clause. Then I shall deal with the amendments.
The clause creates a criminal offence of unauthorised provision, or disclosure of confidential information that a person has available to him by reason of his employment. However, Committee members will see that subsection (4), to which the hon. Member for Newark referred, provides a defence
“to show that ... he believed, on reasonable grounds, that he had lawful authority to provide the information or to make the ... disclosure”.
The amendments would place an obligation on the prosecution to prove that the person made the disclosure knowingly or recklessly. I guess that in tabling the amendment the hon. Gentleman was seeking to protect employees who accidentally made a disclosure or provided information. That is a fair concern. However, as long as the individual concerned could show that he was acting responsibly and professionally—accepting that mistakes are made—  and was generally acting in good faith in the course of his job, he could avail himself of the defence outlined in subsection (4).
We would not want casualness or lax treatment to arise in the treatment of the information. It is important to ensure that people understand the seriousness and importance of the information that they are dealing with, and the clause is important in that respect.
I shall say something about the way in which the clause is structured, which relates to a previous discussion about the burden of proof. It would be for the prosecution to prove a lack of lawful authority for the disclosure, but the question of a reasonable subjective belief that there was lawful authority for disclosure will be in the defendant’s knowledge and difficult for the prosecution to disprove. With regard to those factors, and the serious problems that could arise if people were effectively able to determine for themselves whether a disclosure were lawful, our view is that the imposition of a reverse burden in this case is fair and reasonable. It would be for the individual to show that they had, on the balance of probabilities, acted reasonably in the course of their job. In that context, the use of such a reverse burden would be fair and reasonable.
I shall pick up on some of the concerns raised by Opposition Members. The hon. Member for Westmorland and Lonsdale talked of an unnecessary bank of information. However, as we have said before, the information that would be held under the Bill is held on other Government databases. It is not as if the register would be a new creation. The linkage between the data and the biometric is different, but that is why caution is being taken in the clause, as my hon. Friend the Member for City of Durham (Dr. Blackman-Woods) pointed out, to make sure that it is used appropriately.
The hon. and learned Member for Harborough asked about whether an individual who had suffered materially because of the effect of a disclosure would have a remedy against the discloser, whether it was intentional or not. I understand his point, but it undermines the purpose of the amendments, which seek to protect people who in the course of their jobs might disclose accidentally, although not knowingly or recklessly. His concern is slightly at odds with the amendments.

Edward Garnier: My concern may be outside the amendment, but it is not at odds with it. Although an official might not be guilty of a criminal offence and therefore should not be made liable to the criminal penalty, he might none the less do something that had consequences for the subject of the confidential information. I simply wanted to be sure that a citizen’s right to civil action—either for the remedy of an injunction or, post-publication, for the remedy of damages—should not be shut out and that there was no Crown immunity, so to speak, available to the discloser by virtue of the fact that the criminal penalty was the only remedy available to the state to prevent unlawful disclosure. The Under-Secretary can write to me on that; I do not intend to examine him about the  law of confidence. I am seeking to find out whether there are sufficient protections available to the citizen against the consequences of disclosure.

Andy Burnham: I do not think that I need to write to the hon. and learned Gentleman. The Bill in no way curtails an individual’s avenues for legal action if they think that they have suffered material loss or harm. The rights to civil action are not excluded by the Bill. As I explained to the hon. Member for Westmorland and Lonsdale, people could pursue an action against those in charge of the national identity register, as they could against an existing public body. If a person decided that they wished to do that, the normal injunctive remedies would apply.
Earlier, the hon. and learned Gentleman mentioned secrets of the bedroom and medical secrets, but those will not be on the register. It is hard to imagine the News of the World buying registrable facts, which would not make a fantastic story.

Edward Garnier: I do not want to distract the Under-Secretary from his arguments, but I was seeking to describe the sort of information that is impressed with confidence. Clearly, I do not think that there will be News of the World-type exclusives on the data register. I was not attempting to say that there would be, and I do not think that the Under-Secretary thinks that I was.

Andy Burnham: For the avoidance of doubt, I was making absolutely clear that there would be no salacious information on the register.
In explaining our reasoning behind the clause, we can give Opposition Members the assurances that they need. People will not be punished for carrying out their work and for acting reasonably to carry out their functions in relation to their employment. Equally, we cannot have situations where there is casual management or stewardship of the register, or where it is handed around without proper process or treated casually in any way.
The clause is intended to find a way through that and to strike the right balance. People would always have recourse to the defence that we have outlined. We think that that captures what the hon. Member for Newark is after. I hope that he will see fit to withdraw his amendment. If necessary, I will come back to the hon. and learned Member for Harborough with any further clarification.

Patrick Mercer: I am grateful to the Under-Secretary for outlining his points. I have no doubt that we will touch again on these arguments in relation to amendment No. 103, but, in the meantime, his arguments have been sufficient for me to delay pushing the amendment to the vote. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Patrick Mercer: I beg to move amendment No. 101, in clause 29, page 25, line 42, after ‘issue’, insert ‘manufacture’.
This is a simple amendment, which I hope that the Under-Secretary can quickly satisfy me about. It is intended to amend subsection (2), which states:
“For the purposes of this section a person is required to keep information confidential if it is information that is or has become available to him by reason of his holding an office or employment the duties of which relate, in whole or in part, to—
(a)the establishment or maintenance of the Register;
(b)the issue, modification, cancellation or surrender of ID cards”
and so on.
Looking at identity cards—clearly, not from this country, but from countries that have an identity card scheme—we can see that many are manufactured outside the country in which they are intended to be used. At the point of manufacture, some of the cards have information included on them. I suspect that the Under-Secretary will say that the biometrics—the important part of the material—will be inserted on to the card only at a later stage in the manufacturing process. However, by using the word “manufacture”, I seek to cover not just the creation of the plastic card, but the manufacturing stages involving the further details, as they go on to the card and as it becomes more and more complex. I trust that this is a simple amendment. I think that it would help.

Andy Burnham: Now that my boss has left the Room, I may be about to get myself in trouble. I am aware of the previous debate on this point and I think that the hon. Member for Newark has a point. Amendment No. 101 would add to the circumstances in which someone could be guilty of an offence under the clause. As he said, it would include, as a person who is required to keep information confidential, someone who has access to that information because of his employment in the manufacture of ID cards.
There was a discussion last time round. I think that the then Minister, my right hon. Friend the Member for Kilmarnock and Loudoun (Mr. Browne), said that the manufacture would not include the loading of any personal information on to the chip or the card. That is obviously the crucial point. The issue is not the manufacturing of a blank card to be filled with information. The point at which information is loaded on to the card is the point at which greater caution needs to be exercised.
The Bill refers to the “issue” of ID cards. It is our understanding of the present situation that issuing would include putting the personal information on to the chip. That is the reason why we have used the word “issue”.

Tim Farron: Does the Under-Secretary expect that all the duties listed under subsection (2) would be categorised as positions of trust, for which applicants would be subject to security checks before they could commence their work?

Andy Burnham: Is the hon. Gentleman referring to the positions listed in subsection (2)?

Tim Farron: Subsections (2)(a) and (b).

Andy Burnham: The hon. Gentleman is diverting us slightly from our current discussion, but clearly they are positions of trust. That is why the penalties are set for failure to reach the requirements on the safeguarding and safe stewardship of the data.
As I have said, the issuing of the card is the point at which personal information is loaded on to it. It is imbued with the individual’s details and presented to them. However—this is where the “however” comes in—since January, officials have been doing more work on the options for delivering the scheme. We believe that it might be possible that some data—probably not relating to a named individual but perhaps involving security codes relating to the operation of a card—would be incorporated into the card as it is manufactured. If that were the case, the hon. Member for Newark might be right in saying that the scope of the offence is not quite wide enough and it would be possible for a manufacturing company engaged in the production of cards to disclose information that we would not want disclosed.
The hon. Gentleman has a point but at this stage, if he does not mind, I will not accept the amendment. We shall take it away and consider how we can best cover the end-to-end process, including the manufacturing of the card should that be necessary. We shall see if we can find an appropriate form of words. It might be that the hon. Gentleman’s form of words is acceptable, and if we can use it we will. If not, we shall present an alternative wording on Report. On that basis, I ask him to withdraw the amendment.

Patrick Mercer: I am nonplussed. This is as good as it gets, I suspect. I am grateful to the Under-Secretary—let me state that clearly—for his huge indulgence on this point. Although I thoroughly accept the points that he makes about clause 43, I hope he will give due consideration to the points that I have just made about clause 43(1), which refers to the term “issue”, and clarify how that relates to manufacture. Will he also consider the wording of subsection (5), which states:
“References in this Act to the issue of a document of a card include references to its renewal, replacement or re-issue (with or without modifications).”?
With those codicils in place, I accept everything that the Under-Secretary said. I shall be extremely interested to hear his comeback in due course, and on that basis I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Patrick Mercer: I beg to move amendment No. 103, in clause 29, page 26, line 10, at end insert—
‘(4A)It is also a defence for a person charged with an offence under this section to show that the provision of information or the making of the other disclosure in question was in the public interest.’.
We have already had some revealing discussions about the way that our earlier amendments might or might not sit upon the guilt of a person. I have mentioned that in subsection (4) there is already one defence:
“a defence for a person charged with an offence under this section to show that”
and so on. We have grounds there not for the tout or the informant, but for the worker who feels that they are part of an organisation that has gone astray to make representations to that effect legitimately and properly. The amendment would introduce a further defence.
I do not want to detain the Committee. There are obviously grounds on which disclosing information could be the right and proper thing to do. We should like to insert the amendment to complement and reinforce the defence in subsection (4), and to ensure that the misdemeanours of organisations working above the individual do not go unchecked.

Kali Mountford: I am concerned about the amendment. I assume that the hon. Gentleman seeks to probe the Minister about what defence he thinks should be available to any civil servant or other person who may wish to disclose information. The amendment seems to be a sort of David Shayler way of dealing with matters. If an individual feels that it is his or her right to give over information, because in their view it is a matter of public interest, it would drive a coach and horses through civil service codes of practice.
There may be grounds for considering those codes, and an entirely separate Bill may need to analyse when a civil servant might want to raise a matter of public interest. However, one person may see in another person’s records something terrible about their past. It may be an offence that they have committed, and the first person may want to disclose to the other person’s parents or to anybody living near the other person that this is someone whom they would not want to have living by them. The first person could then say, “I thought it was a matter of public interest; I felt that the other person was dangerous and should not be living near my little sister.” That would be an improper way of dealing with public interest.
The way the amendment is framed gives me cause for concern about how somebody would decide what was in the public interest, in whose interest it really was, and how we could pursue the defence of something being in the public interest possibly not as I would see it, but as only that person would see it. The amendment has some dangerous flaws, and I hope that the hon. Gentleman will reconsider what he had to say.

Andy Burnham: My hon. Friend has raised an important point. The disclosure of information would relate only to registrable facts. It is important to say that it would be hard to envisage how the disclosure of an individual’s registrable facts could raise a broad issue of public interest. In making that comment, I am not seeking to say that there could never be such circumstances; I accept that there could be. My hon. Friend has suggested how those circumstances might arise. However, given that we are dealing with narrow identity data, it is hard to imagine how a broad public interest concern could arise from having an individual’s records on the system. If a discrepancy were to arise and someone knew that someone’s details  were false, there are plenty of avenues to go down to correct that information without going down the route of public disclosure.
Clause 29 creates an offence of unauthorised disclosure or provision of confidential information that is available to the person concerned by reasons of employment or duties relating to the register. As I explained, it is a defence to show that the individual believed on reasonable grounds that he had lawful authority to make the disclosure. The amendment would add another defence in which the provision of information or the making of the disclosure in question was in the public interest.
The hon. Member for Newark can draw some support for the amendment by saying that there are similar defences on the statute book relating to other Acts of Parliament. For example, section 55 of the Data Protection Act 1998 creates an offence of unlawfully obtaining personal data. I do not want the hon. Gentleman to think that he is on a roll, as I would get into further trouble with my boss. I shall therefore set out three reasons why it is inappropriate to make the offence in clause 29 subject to a public interest defence.
First, the offence relates purely to information that is connected with the scheme that the Bill sets up. By the nature of the scheme, that information will tend to relate to narrow personal information about other people. As we discussed, it will not extend to information of a more personal nature that might be held by other agencies. That would be held in an entirely different place. The information is purely identification data. The circumstances in which it will be in the public interest for such information to be released will be limited, if they exist at all. Again, if an employee working in the areas set out in subsection (2) were to feel that there was a discrepancy with an entry in the register, there would be plenty of avenues by which that could be pursued without recourse to disclosure.
Secondly, in so far as an employee feels that a matter needs to be considered, he will be able and, indeed, obliged to approach the national identity commissioner. Thirdly, to provide an alternative channel that, in effect, would permit employees to disclose information and, once it was in the public domain to argue that disclosure was in the public interest, would render the personal data of everyone on the register that bit more vulnerable than perhaps they would have been, for the reasons that I gave in respect of the other amendment. We want to ensure that people know they are working in a secure environment and we want them to take great care. Of course, the effect of this amendment could be that they could put information in the public domain and claim the public interest defence, but the damage would have been done and the individual on the receiving end would have suffered harm and damage as a result of it.
I understand why the hon. Member for Newark tabled the amendment, but, as I said, we do not believe it is necessary. The safeguards are already in place to  ensure that people can invoke a defence should there be a disclosure, accidental or otherwise. For those reasons, I ask him to withdraw the amendment.

Patrick Mercer: The hon. Member for Colne Valley (Kali Mountford) made an eloquent point and made it extremely well. I am still rocking from the effects of the Under-Secretary’s comments on amendment No. 101. In the cloud of semi-comprehension that he induced, I believe that our discussions have been useful. I take the point about the defence in subsection (4). Therefore, on the basis of the clear explanation that I have received and in the spirit in which it was offered, I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 29 ordered to stand part of the Bill.

Clause 30 - Providing false information

Edward Garnier: I beg to move amendment No. 104, in clause 30, page 26, line 25, leave out from ‘false’ to end of line 26.
We can see from the clause that a person is guilty of an offence if he provides information that he knows or believes to be false, or if he is reckless as to whether it is false,
“(a)for the purpose of securing the making or modification of an entry in the Register;
(b)in confirming ... the contents of an entry in the Register; or
(c)for the purpose of obtaining for himself or another the issue or modification of an ID card.”
We come again to my favourite word. If the Minister likes the expression “rolling out”, I enjoy the expressions “modification” and “modified”. It is interesting that we are discussing the modification of an entry in the register, which I accept is a proper use of the word within the context of an Act of Parliament. The Government sought to persuade us last week that when they use the word “modify” in respect of a report or statutory instrument, they mean “amend”, and that we were being provided in the earlier clauses with an opportunity to allow Parliament to amend secondary legislation. I do not know about that, bearing in mind how they use “modification” throughout the subsequent parts of the Bill, including clause 30.
However, I want to ask the Minister by means of amendment No. 104 whether I am right in thinking that the criminal law treats the reckless disregard of truth or falsity in exactly the same way that it treats the known falsity. If one knows that they are telling a lie, they will be treated in the same way as they would if they could not care less whether they were telling a lie. Is it therefore necessary to add
“or ... is reckless as to whether or not it is false”?
The new policy might be one of being super-abundantly clear in legislation that creates offences and that, for example, if information were laid against an individual who had done such a thing before magistrates, or an indictment were to be drawn against  an individual before the Crown court, the Crown might wish to set out those two levels of knowledge as alternatives. It is important to be clear about the Government’s intentions before we allow the clause to stand part of the Bill.

Andy Burnham: The hon. and learned Gentleman knows more of criminal law than I do, but I hope to convince him that it was necessary to draft the clause in this way. He will know that recklessness—as an alternative to intention—is a common feature of the criminal law. A person acts recklessly if he is aware of a risk and, in the circumstances known to him, it would be unreasonable to take the risk. Having regard to the definition of “false” under clause 43, which includes
“any inaccuracy or omission that results in a tendency to mislead”,
it is clear that a person might be reckless as to the veracity of the information he is providing.
I can understand members of the Committee being concerned to ensure that those who mistakenly provide false information, or even perhaps negligently provide false information, are not criminalised by the clause. I can give the hon. and learned Gentleman an assurance that such people will not be criminalised. That is not our intention. However, he will know that recklessness is a higher test than a mistake or negligence and, in my view, reflects a culpability that should be criminalised, given that we all want the register to be maintained to the highest possible standards.
While prosecutions for recklessly providing false information might be few and far between, it is right that the option should be left open to prosecutors and juries. It goes almost without saying that the effect on the accuracy of the register will be the same, regardless of whether a person intended to provide false information or was reckless in providing false information.
The hon. and learned Gentleman asked whether the term “reckless” is strictly necessary, and I hope I have explained why it is. We must also be explicit about the fact that there are alternative states of mind—so I am told—such as knowing information to be false, believing it to be false or being aware that it might be false. However, taking the risk is reckless. There are obviously gradations of being reckless. The clause has been drafted in this way to allow the courts to have regard to all the possibilities for someone providing false information.
I am not an expert, but I gather than recklessness is a common ingredient in criminal offences. It was recently endorsed by the House of Lords in a case in which a previous House of Lords decision was overruled. As a result, recklessness is now subject to a subjective, not an objective, test. The key question is whether the defendant himself appreciated the risk he was taking, not whether the reasonable man would or would not. I hope that means something to the hon. and learned Gentleman.
For the reasons I have outlined, we believe it important to maintain under the Bill the fact that recklessness is a common alternative in the criminal  law to intention. It is of course important that people who apply to join the register do so knowing the risks of failure to provide information that is secure. The recklessness test is a higher test than simply making a mistake or being a bit negligent in terms of the information provided. That, I hope, captures what the hon. and learned Gentleman seeks. We need to keep the Bill as drafted. With that in mind, I ask him to withdraw the amendment.

Edward Garnier: We are talking about the state of mind of the person who provides the false information. A state of mind is a fact. It is usually to be inferred from what someone says or does or knows. I know the difference between negligence and recklessness. I wanted to know whether, for the purposes of the criminal law, there is a difference in this case between recklessness and deliberate behaviour. I think the Under-Secretary has persuaded me that what the Government intend is in line with the current state of the criminal law.

Andy Burnham: If it will help, I shall repeat the point. Deliberate behaviour is obviously covered by the intention to supply false information. That is the deliberate act. Recklessness is where people provide information knowingly, rather than mistakenly or negligently. They know the risks involved in doing so. There is a difference. Obviously the intent is within the Bill. Recklessness, being a higher test than negligence or anything else, is also in the Bill. I think that clarifies the point, or at least I hope it does.

Edward Garnier: I am grateful to the Under-Secretary for that intervention. There are occasions when further elaboration leads to greater confusion, rather than greater certainty. To prevent the Bill from getting more rather than less confused, I will stop this conversation. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Edward Garnier: I beg to move amendment No. 105, in clause 30, page 26, line 29, leave out “two years” and insert “one year”.

Roger Gale: With this it will be convenient to discuss the following amendments:
No. 106, in clause 30, page 26, line 31, leave out “twelve” and insert “six”.
No. 108, in clause 31, page 27, line 34, leave out “twelve” and insert “six”.

Edward Garnier: We had this discussion in relation to other offences earlier in the Bill and it is about the length or the quantity of penalty that should apply to someone who provides false information whether deliberately or recklessly, but certainly not negligently. I simply want the Government to justify the two-year prison sentence in view of the 12-month prison sentence available under clause 31(7). It is up to the Government to discharge the burden of proof here, and I look forward to hearing them do so.

Andy Burnham: As the hon. and learned Gentleman explained, the amendment would reduce the maximum penalty for providing false information from two years to one year. We take the view that a one-year maximum sentence would not reflect the seriousness of the offence. The two-year maximum sentence is consistent with the broadly analogous offence of possessing false documents, which we discussed in relation to clause 27 and which also attracted a sentence of two years. The offence of unauthorised disclosure of information from the register also attracts a maximum penalty of two years.
We believe that there is some consistency in what we are arguing. The stronger sentence is designed to reflect the seriousness with which we consider this and the importance of the integrity of the register.
As we discussed in relation to the magistrates courts, the Bill provides that on summary conviction the maximum penalty is 12 months’ imprisonment. Until the commencement of section 154(1) of the Criminal Justice Act 2003, the reference to 12 months is to be read as a reference to six months. The amendment would amend that to six months. It is essentially the same amendment as was tabled in relation to clause 27  for the offence of possession of false documents. As I said, we will resist this amendment too, because we want the courts to have exactly the same powers under that Act in respect of the offences listed in the Bill as they have with respect to other offences. The amendment would limit their powers when they had a broader power across the piece.
I see no need to detain the Committee further. Given that we have been over this ground, I hope the hon. and learned Gentleman will withdraw the amendment.

Edward Garnier: I will withdraw the amendment, but we might need to return to the issue. In the meanwhile, anyone who wants to provide false information, be it recklessly or deliberately, had better travel to Scotland or Northern Ireland to do so. I beg to ask leave to withdraw the amendment.

Amendment, by leave, withdrawn.

Clause 30 ordered to stand part of the Bill.
Further consideration adjourned.—[Joan Ryan.]
Adjourned accordingly at twenty-five minutes past Six o’clock till Thursday 21 July at quarter-past Nine o’clock.